The RICO Statutes or more correctly the Racketeer Influenced and Corrupt Organizations Act are fast
becoming a major source of legal code for both criminal and civil actions. More formally
RICO is TITLE 18, PART 1, CHAPTER 96, Section 1961 of the United States Code. Other prominent sections
of the law are as follows:

The history of RICO has origins in prohibitions into piracy, smuggling, and forfeiture.
Following the Norman Conquest of England, William the Conqueror (1066 1087) instituted a land tenure
system based on the principle of absolute ownership by the Crown. In essence this was feudalism.
The introduction of the concept of felony in British common law is genus for the species treason.
The term felonia first appears in 1108 during the reign of Henry I (1100 1135) and is used to
discuss a vassal's breach of contract to his lord (Goebel, 1976). Feudalism was not abolished in
England until 1660.

Treason resulted in death as well as an immediate forfeiture of lands and property to the king.
Felonies resulted in death and land and chattel were escheated to the lord (Greek, 2003). Hence the
modern code has been particularized from English common law and other codes designed to fight
organized crime from the thirties. There is also a nexus with other foreign laws as the countries of
Italy and Russia to fight Mafia styled crime and racketeering.

The sophisticated nature and scope of systematic crime gave rise to a more unified crime fighting
tool (Cain, 1996):

However, in 1970, in order to meet the rise in organized crime activity, Congress enacted RICO,
the first criminal forfeiture statute in American history. RICO allows the seizure of property,
particularly money, obtained from a pattern of racketeering activity. It is an effective weapon on
the war on drugs and has been used with increasing regularity. Since RICO, Congress has passed only
two other forfeiture statutes: the Continuing Criminal Enterprise Act (CCE) and the Comprehensive
Drug Abuse Prevention and Control Act (CDAPCA). Section 1963(a) (1) of RICO was designed to effect
an attack upon the economic bases of organized crime; the goal being to remove the incentive of
capitalization through forfeiture (Cain, 1996).

The concept of RICO is to deny the intent of one or an association to conceptualize and or
carry out a criminal conspiracy. It is also a check to recruit membership or diversity of such.
In the United States most non sundry felonies under U.S. jurisdiction at the state or federal level
committed by an adult may be certified as a predicate act. Upon two such certifiable felonies,
the prosecutor or petioner may ask the Court to certify the defendant(s) or respondent(s) as a
RICO enterprise. An array of acts are covered which are known as racketeer influenced behavior.
They are: intimidating a witness, hostage taking, kidnapping, and murder. In combination at any
level of this structure may be blackmail and extortion.

Sec. 1961. Definitions

This section attempts to narrow the discussion of code. Prominent are under (1) (A) which define
the racketeer influenced behavior including arson and dealing in a controlled substance.
Under (B) of interest is the protection of the law and the witness. The latter are usually
the victims in the use of the racketeer influenced behavior. The use of violence against persons is a
key feature of corrupt organizations. In support one should note section 1503
(relating to obstruction of justice), section 1510 (relating to obstruction of criminal investigations),
section 1511 (relating to the obstruction of State or local law enforcement), section 1512
(relating to tampering with a witness, victim, or an informant), and section 1513
(relating to retaliating against a witness, victim, or an informant).

The Department of Justice Criminal Resource Manual describes:

An "enterprise" is defined as including any individual, partnership,
corporation, association, or other legal entity, and any union or group of individuals associated
in fact although not a legal entity. 18 U.S.C.A. 1961(4) (West 1984). Many courts have noted that
Congress mandated a liberal construction of the RICO statute in order to effectuate its remedial
purposes by holding that the term "enterprise" has an expansive statutory definition.
United States v. Delano, 825 F. Supp. 534, 538-39 (W.D.N.Y. 1993), aff'd in part, rev'd in
part, 55 F. 3d 720 (2d Cir. 1995), cases cited therein.

A pattern of racketeering activity requires at least two acts of racketeering activity committed
within ten years of each other. 18 U.S.C.A. 1961(5) (West, 1984).

Continuity has been a rebuttal to certification. Congress has prescribed that a long range of time
of illegal activity is required to certify a predicate act. However in the law of case Chief Justice
Scalia has stated it would be absurd to say that "at least a few months of racketeering activity. . .
is generally for free, as far as RICO is concerned." Id. at 254, 109 S. Ct. at 2908. This would be
taken in the context that there is a threat of long term illegal activity.

Sec. 1962. Prohibited activities

This section attempts to constrain the profits from patterns of racketeering activity.
One may not according to (a) recover any debt regarding a racketeering activity. Acting as principal
or any relative or accomplices to the fact are also proscribed from receiving any remuneration or gain
from criminal activity. Subsection (b) clearly prevents any ownership in a RICO enterprise:

It shall be unlawful for any person through a pattern of racketeering activity or through
collection of an unlawful debt to acquire or maintain, directly or indirectly, any interest in or
control of any enterprise which is engaged in, or the activities of which affect, interstate or
foreign commerce.

Subsection (c) prevents the participation of one in a pattern of racketeering activity directly or
indirectly in the conduct of the enterprise or through the collection of a debt. In close,
(d) states:

It shall be unlawful for any person to conspire to violate any of the provisions of subsection
(a), (b), or (c) of this section.

The prosecution in criminal cases must prove beyond a doubt that: (1) that an enterprise existed;
(2) interstate commerce was effected; (3) the defendant was associated with or employed by the
enterprise; (4) the defendant engaged in a pattern of racketeering activity;
(5) the defendant conducted or participated in the conduct of the enterprise through a pattern of
racketeering activity through the commission of at least two acts as set forth in the indictment.
United States v. Phillips, 664 F. 2d 971, 1011 (5th Cir. Unit B Dec. 1981), cert. denied,
457 U.S. 1136, 102 S. Ct. 1265, 73 L.

Sec. 1963. Criminal penalties

One who violates any provision of section 1962 of this chapter shall be fined or imprisoned not
more than 20 years or life imprisonment if the racketeering activity is inclusive or both fine and
imprisonment regardless of any state law. In following this section provides for relief through the
forfeiture (a) (et seq.) of interest, security, claim against, property or contractual right of
any kind affording a source of influence over;

(2)(D) any enterprise which the person has established, operated, controlled, conducted,
or participated in the conduct of, in violation of section 1962; and

(3) any property constituting, or derived from, any proceeds which the person obtained,
directly or indirectly, from racketeering activity or unlawful debt collection in violation of
section 1962.

(c) All right, title, and interest in property described in subsection (a) vests in the
United States upon the commission of the act giving rise to forfeiture under this section. Any such
property that is subsequently transferred to a person other than the defendant may be the subject of
a special verdict of forfeiture and thereafter shall be ordered forfeited to the United States.

Subsection (d) provides that upon application of the United States, a restraining order or
injunction, would require a satisfactory performance bond for property described in (a) for forfeiture.
Generally after conviction such property would result in forfeiture. A process of information and
indictment is necessitated to sustain such an order past ninety days (d) (2). Pursuant to such a
hearing evidence that would not normally be heard under the Federal Rules of Evidence may be brought.

In close, the Attorney General is authorized power to grant petitions for mitigation or remission
of forfeiture, restore forfeited property to victims, and take action to protect the rights of
innocent persons which is in the interest of justice. Power is granted to compromise claims arising
under this section; award compensation to persons providing information resulting in forfeiture under
this section; and direct the disposition by the United States of all property ordered forfeited under
this section by public sale or any feasible means in consideration of the legal right of persons.

Sec. 1964. Civil remedies

This section defines jurisdiction in regards to the United States, Attorney General, permits any
injured party to sue for threefold damages, and declares that a final judgment or decree in favor of
the United States will estop the defendant from denying any criminal allegations in a subsequent civil
action brought by the United States.

(a) The district courts of the United States shall have jurisdiction to prevent and restrain
violations of section 1962 of this chapter by issuing appropriate orders, including, but not limited
to: ordering any person to divest himself of any interest, direct or indirect, in any enterprise;
imposing reasonable restrictions on the future activities or investments of any person, including,
but not limited to, prohibiting any person from engaging in the same type of endeavor as the
enterprise engaged in, the activities of which affect interstate or foreign commerce; or ordering
dissolution or reorganization of any enterprise, making due provision for the rights of innocent persons.

(b) The Attorney General may institute proceedings under this section. Pending final determination
thereof, the court may at any time enter such restraining orders or prohibitions, or take such other
actions, including the acceptance of satisfactory performance bonds, as it shall deem proper.

Sec. 1965. Venue and process

This section prescribes that a civil action is brought correctly under the courts in personem
jurisdiction based on the following grounds:

(a) Any civil action or proceeding under this chapter against any person may be instituted in the
district court of the United States for any district in which such person resides, is found, has an
agent, or transacts his affairs.

(b) In any action under section 1964 of this chapter in any district court of the United States
in which it is shown that the ends of justice require that other parties residing in any other
district be brought before the court, the court may cause such parties to be summoned, and process for
that purpose may be served in any judicial district of the United States by the marshal thereof.

Subpoenas issued by the court to compel attendance of witnesses may be served in any other
district. Subsection (c) states any service upon a person who resides over one hundred miles away
in another district from where the court is held needs special approval from a judge with good cause.
In subsection (d) it is stated that all other processes or proceedings held under this chapter are
correctly served upon any person regardless of the judicial district of residence.

Sec. 1966. Expedition of actions

This very brief section gives the United States priority on the court's docket in civil actions
brought by the Attorney General. Civil dockets by prisoner petioners have precedence as extraordinary
writs such as the habeas corpus. Generally all federal civil petitions may be expedited by
having both petioners and respondents agree to have the case heard by a magistrate judge initially
than a district judge.

In any civil action instituted under this chapter by the United States in any district court of the
United States, the Attorney General may file with the clerk of such court a certificate stating that
in his opinion the case is of general public importance. A copy of that certificate shall be
furnished immediately by such clerk to the chief judge or in his absence to the presiding district
judge of the district in which such action is pending. Upon receipt of such copy, such judge shall
designate immediately a judge of that district to hear and determine action.

Sec. 1967. Evidence

In any proceeding ancillary to or in any civil action instituted by the United States under this
chapter the proceedings may be open or closed to the public at the discretion of the court after
consideration of the rights of affected persons.

The section at face renders a sufficient explanation.

Sec. 1968. Civil investigative demand

The section deals with what may be construed to as discovery rights as motions for production of
material evidence. The code uses the word demand in (a). Later in (c) (1-2) the Latin
subpoena duces tecum is used to clarify a demand in relation to a grand jury hearing into the
investigation.

(a) Whenever the Attorney General has reason to believe that any person or enterprise may be in
possession, custody, or control of any documentary materials relevant to a racketeering investigation,
he may, prior to the institution of a civil or criminal proceeding thereon, issue in writing,
and cause to be served upon such person, a civil investigative demand requiring such person to
produce such material for examination.

(c) No such demand shall -

(1) contain any requirement which would be held to be unreasonable if contained in a
subpoena duces tecum issued by a court of the United States in aid of a grand jury
investigation of such alleged racketeering violation; or

(2) require the production of any documentary evidence which would be privileged from disclosure if
demanded by a subpoena duces tecum issued by a court of the United States in aid of a grand
jury investigation of such alleged racketeering violation.

Service of the demand may be made by mail to the person upon who the demand is ordered.
The return of the post office receipt will function as proof of service.

The Attorney General shall designate a racketeering investigator who shall serve as
racketeer document custodian. The production of the materials made shall be to this officer.
Copies of materials may be substituted by agreement of parties. The racketeer document custodian
is in charge of the preparation of these materials at the order of the Attorney General (3).
Only the Attorney General may inspect the items unless there is consent by the person who deposited
the items. Subsection (4) also designates that any attorney appearing on behalf of the United States
shall have access to such materials.

Subsection (7) (h) permits a person to petition to modify or set aside the order. In degree a time
limit of twenty days is permitted for a show of cause.

After the termination of all hearings the custodian shall return all the demanded articles to the
depositor in a timely manner. The section gives broad power to the interests of the United States to
request and control material that be part of the construction or documentation of the
RICO enterprise.

Summary

The unity of the RICO statutes is that such permits the building of a criminal or civil case
regarding events that do not prima facie appear to be part of a larger organization. The statutes give
considerable leverage to the United States Attorney General to coordinate resources to direct the
fragmentation, prosecution, and divestment of the enterprise. There are opinions that the basic
constitutional rights of the average citizen have been abridged by returning power to the Department
of Justice from the citizen. This critique is beyond the scope of this brief.

In points of criminal law, the authors of RICO crafted such that the United States could not
directly proscribe the status of being a member of a criminal organization. Alternatively,
crimes in which organized crime groups typically are supposed to engage were cited, and then
RICO made participation in a group that commits such crimes. RICO, in this respect, is similar to
conspiracy, which technically is defined in terms of an act; the act of agreeing to commit a crime,
but which the courts treat as an enterprise. An enterprise may be only one principal.

RICO has been used to greatest success, to prosecute those who commit crimes as part of a group.
It goes beyond conspiracy, in that it permits the joinder of members of a group who are too loosely
connected with each other to be considered parties to a single conspiratorial agreement.
RICO permits the prosecution to bring to trial all members of the group, to expose the full scope
of the organization, and according to Wise "present a complete picture of a largescale, ongoing,
organized crime group engaged in diverse rackets and episodic explosions of violence." (Wise, 2000).

Agreement of a conspirator with other principals is not needed for successful prosecutions,
Delano, 825 F. Supp. at 542. All that must be shown is: (1) that the defendant agreed to
commit the substantive racketeering offense through agreeing to participate in two predicate acts;
(2) the principal had knowledge of the general status of the conspiracy; and (3) that one knew the
conspiracy extended beyond one's individual role. United States v. Rastelli, 870 F. 2d 822,
828 (2d Cir.), cert. denied, 493 U.S. 982, 110 S. Ct. 515, 107 L. Ed. 2d 516 (1989).

Conclusion

According to Carlson, K & Finn, P. 1993:

In 1990, 3,248 defendants in cases terminated in United States District Courts were charged with
either racketeering or one or more of the offenses underlying the racketeering statute.
Thirty one percent of these defendants, 996 were specifically charged with a racketeering violation.
Over a 3 year period ending June 30, 1990, racketeering convictions were based principally on charges
of interstate travel in aid of racketeering (28%) or RICO (27%). The predicate offenses on which
racketeering convictions were based were primarily gambling offenses (21%), drug offenses (23%),
and threats and extortion (22%).

The average monetary loss in such cases involving racketeering was $1.9 million dollars.
Prosecutions on racketeering charges were more likely in the eastern United States than in the west.
A quarter (27%) of defendants in racketeering cases terminated in 1990 were prosecuted in five
judicial districts (Northern Illinois, Southern Florida, Southern and Eastern New York,
and South Carolina) (Carlson, K. & Finn, P. 1993).

Criminal and civil complaints are growing increasingly novel. The range in subject matter can be
from abortion protests, divorce settlements, securities, towards abuse by clergy. The code does not
specify in the abstract more than the generic term felony. The Courts have been used extensively in
the law of case to narrow the various types of pleadings that can be heard under the RICO statutes.
Many of the cases are recent opinions. In addition to official government sources, the Rico Law
Reporter is a very professional publisher of legal consultation that endeavors to cover all
RICO filings and dispositions.

Continuing Criminal Enterprise

The continuing criminal enterprise statute, Title 21 United States Code (U.S.C.) subsection 848,
is the most important federal criminal statute in the United States directed at illegal drug
traffickers and their organizations. The statute was enacted in 1970 as part of a comprehensive
legislative policy aimed at drug abuse prevention and control. It is the only statute in the federal
drug laws that contain a mandatory minimum sentencing provision of not less than 10 years and up to
life imprisonment following conviction.

The continuing criminal enterprise statute also provides for rights enabling the United States to
seek forfeiture of the proceeds obtained by the defendant from the criminal enterprise. As
organizations succeeded to move their finances out of the United States in an effort to launder those
funds and or hide their financial interest, or to invest the funds in assets out of the United States,
the necessity for prosecutors to identify assets in order to seek forfeiture, and the cooperation of
private institutions and the courts in other countries came to the forefront to obtain evidence of
violations of the laws of the United States.

The continuing criminal enterprise statute, 21 U.S.C. 848, was enacted as part of the Comprehensive
Drug Abuse Prevention and Control Act of 1970. The statute is aimed at any person who
occupies a position of organizer, a supervisory position, or any other position of management
in a drug producing and drug distributing enterprise. This legislation provides for one of the most
severe penalties of any federal criminal statute. Under the CDAPCA, convicted violators must be
sentenced to a mandatory minimum of 10 years imprisonment with no possibility of parole. The court
may impose a life sentence without parole and fines totaling $ U.S. 2,000,000 for an individual or
$5,000,000 if such is an organization. On the second conviction of this statute the minimum sentence
is 30 years. All profits and assets that have afforded the defendant a source of influence over the
illegal enterprise are subject to forfeiture (Carlson & Corcoran, 1983).

Subsection (b) defines cause for life imprisonment:

Any person who engages in a continuing criminal enterprise shall be imprisoned for life and fined
in accordance with subsection (a) of this section, if -

(1) such person is the principal administrator, organizer, or leader of the enterprise or is one
of several such principal administrators, organizers, or leaders; and

(2) (A) the violation referred to in subsection (c)(1) of this section involved at least 300 times
the quantity of a substance described in subsection 841(b)(1)(B) of this title, or

(B) the enterprise, or any other enterprise in which the defendant was the principal or one of
several principal administrators, organizers, or leaders, received $10 million dollars in gross
receipts during any twelve month period of its existence for the manufacture, importation,
or distribution of a substance described in section 841(b)(1)(B) of this title.

Violence in support of enterprise

The phrase continuing criminal enterprise is defined as one who violates any provision of this
subchapter or subchapter II, if the violation is a part of a continuing series of violations of the
previous subchapters, and which are undertaken in concert with five or more persons in which the said
person is in the position of organizer, supervisor, or any other position of management,
and from which the person obtains substantial income or resources. The use of violence in support of
the enterprise is a focal concern. The authors of the statute in (e) Death penalty specify the
conformity of killing to the code at hand.

(A) any person engaging in or working in furtherance of a continuing criminal enterprise,
or any person engaging in an offense punishable under section 841(b)(1)(A) of this title or
section 960(b)(1) of this title who intentionally kills or counsels, commands, induces, procures,
or causes the intentional killing of an individual and such killing results, shall be sentenced to
any term of imprisonment, which shall not be less than 20 years, and which may be up to life
imprisonment, or may be sentenced to death; and

(B) any person, during the commission of, in furtherance of, or while attempting to avoid
apprehension, prosecution or service of a prison sentence for, a felony violation of this subchapter
or subchapter II of this chapter who intentionally kills or counsels, commands, induces, procures,
or causes the intentional killing of any Federal, State, or local law enforcement officer engaged in,
or on account of, the performance of such officer's official duties and such killing results,
shall be sentenced to any term of imprisonment, which shall not be less than 20 years, and which may
be up to life imprisonment, or may be sentenced to death.

Law enforcement officer for the purposes of the code is defined by a public servant authorized by
law or by a Government agency or Congress engaged in the prevention, investigation, prosecution of an
offense. The correction, probation, or parole officer is inclusive. A capital penalty may only be
sought for any offense under this section in accordance with the particulars of this section.

The Government (h) must serve notice to the defendant if the death penalty is being sought.
The prosecutor must serve notice a reasonable time before the trial or acceptance of the court of a
guilty plea. The notice (A), (B), will state that upon conviction the Government is seeking the death
penalty and the aggravating circumstances enumerated in (n). The court may permit the Government to
amend the notice (2). Subsection (i) prescribes the judge and jury upon whom the hearing should be
heard due to the dispensation of the facts. The guilt may be obtained with a varying degree of
procedure; the object is to retain the jury if there was such in deciding guilt. The jury impaneled
shall number no less than twelve unless agreed to by both parties.

In case of guilt resulting from subsection (e) the death penalty, information regarding aggravating
or mitigating circumstances may be presented. There will be no presentence report and the parties will
be able to present and rebut witnesses and evidence (j). The burden of proof in supporting the
aggravating circumstances rests on the Government (appendix). The burden of establishing the
mitigating factor is on the defendant by preponderance of the evidence.

(j) Any other information relevant to such mitigating or aggravating factors may be presented by
either the Government or the defendant, regardless of its admissibility under the rules governing
admission of evidence at criminal trials, except that information may be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice, confusion of the issues,
or misleading the jury.

A return of finding of an aggravating factor must be unanimous by the jury or court if
there is none. A finding of a mitigating factor may be made by one or more members of the jury (k).
The jury or the court may then decide if the aggravating factors outweigh the mitigating factors.
If an aggravating factor set forth in subsection (n) (1) of this section and one or more of the other
aggravating factors set forth in subsection (n) of this section are found to exist, the jury,
or if there is no jury, the court, shall then consider whether the aggravating factors found to exist
sufficiently outweigh any mitigating factor or factors found to exist, or in the absence of mitigating
factors, whether the aggravating factors are themselves sufficient to justify a sentence of death.
Based upon this consideration, the jury by unanimous vote, or if there is no jury, the court,
shall recommend that a sentence of death shall be imposed rather than a sentence of life imprisonment
without possibility of release or some other lesser sentence. The jury is never ordered to use the
death penalty and must be so instructed.

The progressive nature of modern jurisprudence is written into the code. In (I) Imposition of
sentence, it is stated that the death sentence may not be imposed on one who is less than 18 years
of age at the time the crime was committed. A death sentence may not be carried out on one with a
mental disability who cannot understand the nature of the proceedings or the nature of the punishment
or could not convey facts to one's defense to the court.

Summary and Conclusion

The continuing criminal enterprise statute, Title 21 United States Code (U.S.C.) subsection 848,
is considered one of the kingpin statutes, or those meant to incapacitate large individuals and their
organizations from committing large scale contraband operations. Persons engaged in 300 times the
quantity of a substance described in subsection 841(b)(1)(B) of this title, or those persons or the
enterprise who received $10 million dollars in gross receipts during any twelve month period of its
existence in regards to the racketeering of contraband face a mandatory minimum of no less than
10 years in prison and upwards to a life sentence.

The code like RICO, Chapter 96, subsection 1961, enhances the rights of the United States Attorney
General in pursuit of assets and evidence of the enterprise. The prosecutor is given discretion in
the use of the death penalty. Unique in establishing precedent in this area is the case of
Juan Garza. Garza, 44, was convicted of killing Thomas Rumbo and ordering murders of Gilberto Matos
and Erasmo De La Fuente because he thought they were informants. The United States Government stated
Garza controlled an extensive marijuana trafficking organization based in Brownsville Texas,
from early 1980s until 1992. He was to be the first federal prisoner executed since 1963,
but President Clinton delayed a December, 2000 execution pending Justice Department review of the
federal death penalty system. Garza was executed June 19, 2001.

Richard H. Burr, esq. of Houston, Texas supplied an affidavit in support of Garza to the
Organization of American States and raised the following arguments on his behalf. The OAS has no
enforceable jurisdiction in the United States. Burr cited 28 cases in which the USAG did not seek
the death penalty. Most of these cases according to Burr represent the killing of more persons than
Garza was culpable of. Burr also raised the question of the right of the United States to present
aggravating circumstances to the court after a guilty conviction. Race and its admissibility in
the court were also issues.

Attorney General John Ashcroft had these comments regarding Garza: "Juan Raul Garza's guilt is
not in doubt. In conjunction with his activities as the leader of a drug smuggling ring. He personally
committed the murder of Thomas Rumbo by shooting him five times in the head and neck. He ordered the
murder of Erasmo De La Fuente and paid the killers $10,000 each. He also ordered the murder of
Gilberto Matos whose killers were given money and a car."

In addition to these three murders, in the sentencing phase of the trial the jury found beyond a
reasonable doubt that Garza was responsible for ordering the murders of Antonio Nieto, Bernabe Sosa,
Diana Flores Villareal, Oscar Cantu, and Fernando Escobar Garcia. Thus, the jury found that Garza was
responsible for eight murders.

The use of the death penalty is infrequent with the federal system. Garza was also in the federal
facility with Timothy McVeigh. Garza was the first federal execution since 1963.

The new emphasis on conducting a war on racketeering has lead to greater power in law enforcement.
However, the political climate in which to build the law of case and subsequent dispensation is
problematic in reconciling abstract code with concrete fact and the trial process. It remains that
the Continuing Criminal Enterprise is the strongest federal code available against drug trafficking.